Thursday, May 1, 2014

Mikhail on the Necessary and Proper Clause and "the Common Affairs of the World"

We noted earlier that my Georgetown Law colleague John Mikhail would be posting over at Balkinization on his ongoing research on the necessary and proper clause. (We noted the publication of an initial installment of that research here.) The latest, very substantive post, went up yesterday. It commences:

Historians and other scholars often assume that the phrase “necessary and proper” was novel or constructed out of thin air at the constitutional convention. As my last post indicated and this post will seek to demonstrate, this assumption seems clearly erroneous. A different assumption, which also appears to be misleading in many respects, is that “necessary and proper” was a term of art in 1787, which only a trained lawyer or someone with specialized knowledge would be able to use or interpret correctly. Both of these familiar narratives appear to lend at least indirect support to the Supreme Court’s recent Necessary and Proper Clause jurisprudence, insofar they imply that the original meaning of “necessary and proper” was either highly opaque or highly technical. On either alternative, the natural tendency is for ordinary language “drawn from the common affairs of the world” (John Marshall) to become unduly refined and artificial.

Because I was skeptical of the received wisdom on this issue, I decided to examine every occurrence of “necessary and proper” and three closely related phrases—“proper and necessary,” “necessary or proper”, and “proper or necessary” (henceforth “the target phrases”)—which I could locate in various archives, published records, and electronic databases. These resources included the James Wilson Papers; the Robert Morris Papers; the records of the Ohio, Indiana, Illinois-Wabash, and other early American land companies; the Journals of the Continental Congress; the Letters of Members of the Continental Congress; the Avalon Project at Yale Law School; and the Founders Online project of the National Archives, a new searchable database of the collected papers of six prominent founders (George Washington, John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, and Alexander Hamilton).

What emerged from this investigation was a powerful confirmation of the fact that both of these influential accounts of the origins of the Constitution's “necessary and proper” language appear to be fundamentally misguided. On the basis of this initial study, in fact, at least three countervailing lessons can be drawn with reasonable confidence.